Same Case. — Applicatton for a Re-hearing.
. Merrick, O. J.An application for a re-hearing has been filed in this case, in which a point made by appellants in their original brief, and overlooked in the opinion rendered by us, is again called to our attention.
It is contended “ that the bond sued on is not the property of the plaintiff, but still remains the property of the Sheriff,” inasmuch as the bond was not transferred to the sheriff/
The Act of 1839, p. 163, sec. 3, amending Art. 269 of the Code of Practice, declares, “ that in cases of attachment, when the defendant has given his bond, with security, as by said article provided, and fails to satisfy the judgment rendered against him, the plaintiff may, on the return of the sheriff that no property has been found, and on exhibiting to the court said obligation duly transferred to him, obtain judgment against the surety on said obligation, upon motion after ten days previous notice to said surety, which motion shall be tried summarily and without the intervention.of a jury, unless the surety shall allege under oath that the signature to the bond purporting to be his, is not genuine, or that the judgment has been satisfied.”
It is argued that the law does not make vain provisions, and that it is essential to the action that the bond should be duly transferred. It is further contended that the bond (of the intervenor, we presume,) might in certain contingencies belong to the defendant.
Although the bond itself is made payable to the sheriff, yet the condition shows, that the primary object of the instrument is to indemnify the plaintiff and substitute for his benefit the obligation of the defendant or intervenor and surety in the place of the property attached. Now our law without assignment of the *127instrument, expressly gives the third person for whose advantage a stipulation is made, an equitable action. 0.0.1884,1896. 0. P. 35. '
There are two modes of proceeding then, allowed upon such bond, one a regular suit, by formal citation ; the other by motion under the statute.
This is an action in the first of said modes. Moreover, no issue was made that the bond was not transferred, and it was offered in evidence'without objection.
Whether in a rule or motion, under the statute, a party can proceed without - showing an assignment of the bond to himself, (where the proper defence is made), it is not necessary now to determine.
The petition for a re-hearing is therefore refused.